Ways to Hold Title in California

Ways to Hold Title

HOW YOU TAKE TITLE - ADVANTAGES AND LIMITATIONS:
Title to real property in California may be held by individuals, either in Sole Ownership or in Co-Ownership. Co-Ownership of real property occurs when title is held by two or more persons. There are several variations as to how title may be held in each type of ownership. The following brief summaries reference seven of the more common examples of Sole Ownership and Co-Ownership.

SOLE OWNERSHIP

  • A man or woman who is not married.
    Example: John Doe, a single man.

     

  • An Unmarried Man/Woman:
    A man or woman, who having been married, is legally divorced.
    Example: John Doe, an unmarried man.

     

  • A Married Man/Woman, as His/Her Sole and Separate Property:
    When a married man or woman wishes to acquire title as their sole and separate property, the spouse must consent and relinquish all right, title and interest in the property by deed or other written agreement.
    Example: John Doe, a married man, as his sole and separate property.

     

CO-OWNERSHIP

  • Community Property:
    Property acquired by husband and wife, or either during marriage, other than by gift, bequest, devise, descent or as the separate property of either is presumed community property.  See Community Property with the Right of Surviorship below.
    Example: John Doe and Mary Doe, husband and wife, as community property.
    Example: John Doe and Mary Doe, husband and wife.
    Example: John Doe, a married man.

     

  • Joint Tenancy:
    Joint and equal interests in land owned by two or more individuals created under a single instrument with right of survivorship.
    Example: John Doe and Mary Doe, husband and wife, as joint tenants.

     

  • Tenancy in Common:
    Under tenancy in common, the co-owners own undivided interests; but unlike joint tenancy, these interests need not be equal in quantity and may arise at different times. There is no right of survivorship; each tenant owns an interest, which on his or her death vests in his or her heirs or devisee.
    Example: John Doe, a single man, as to an undivided ¾ ths interest, and George Smith, a single man as to an undivided 1/4th interest, as tenants in common.

     

  • Trust:
    Title to real property in California may be held in trust. The trustee of the trust holds title pursuant to the terms of the trust for the benefit of the trustor/beneficiary.

     

The preceding summaries are a few of the more common ways to take title to real property in California and are provided for informational purposes only.

There are significant tax and legal consequences on how you hold title. We strongly suggest contacting an attorney and/or CPA for specific advice on how you should actually vest your title.

CONCURRENT CO-OWNERSHIP INTERESTS

The comparison below is provided for information only, it should not be used to determine how you hold title. We highly recommend that you seek professional counsel from an attorney and/or CPA to determine the legal and tax consequences of how title is vested.

 

Holding Title as Community Property and Right of Surviorship
 
I have found that "common wisdom", and rules of thumb passed down for years in the real estate industry sometimes needs to be re-examined.   For many years, real estate agents and lenders in California, when asked the question:  "How should I hold title?" would first, defer to a tax professional or legal professional - but generally would add:  "The most common way to hold title for married couples is Joint Tenancy because of the automatic right of survivorship of one of the joint tenants dies, without need for probate."  And as such, most buyers would select that option without seeking further advice.   It's true.   And up until 2001 - it was a pretty good way to go.

In July, 2001 however, California enacted Civil Code Section 682 which added the option of married couples to hold title as :  Community Property with the Right of Survivorship.    In 2003, California passed the Domestic Partner's Rights and Responsibiities act, which extended this privilege and option to registered domestic partners as well. 

Big deal - so what?   The main benefit of this new way of holding title is as follows:   Primarily, the benefit of community property for a husband and wife allows that if one of the spouses dies, and leaves his/her half to the other person, the entire property would be revalued for the purpose of basis to the value of the property at the time of death.  So if they had purchased it for $10,000 and at the time of death, the value was $100,000 the decedents portion of the property could be inherited by the other person, and the entire property would be revalued at $100,000 for tax basis purposes.   BUT - probate may be involved.

With joint tenancy, the property passes to the other person automatically without need to probate, however, only the decedent's portion of the property would be stepped up in value.  In other words, this same property purchased for $10,000 would give each person a basis of $5,000.  If one spouse died, no probate would be involved, but the new tax basis for the property would only be $55,000.  (1/2 of the $100,000 current value, plus the surviving spouse's original basis). 

With Community Property with the Right of Survivorship, you get the best of both worlds.  There is automatic survivorship without the need to probate AND the entire property is stepped up in basis value.   This can become significant for estate planning because you not only avoid the cost of probate, but also, since the capital gains are based on the difference between basis and sales price - having a much higher basis can create significant tax savings. 

If you already hold your property as joint tenants - fear not - it's very simple to deed the property, from the owners in joint tenancy, back to yourselves as owners in community property with right of survivorship.

What is Community Property with a Right of Survivorship?

Community property with a right of survivorship vests the surviving spouse with outright ownership of the decedent's one-half community property interest just like joint tenancy with the relative tax advantages of holding title as community property. If a joint tenancy accomplishes your objectives, community property with a right of survivorship might be even better because it not only avoids probate but can provide a step-up in basis.

If a married couple combined estates is less than the applicable exclusion amount, there is usually no need for estate tax planning. Even in a estate with a need to avoid estate taxes, a community property with a right of survivorship deed may preferred to transfer to the surviving spouse the personal residence.

However, holding title as community property with right of survivorship is not always superior to holding title in joint tenancy between spouses because certain creditor's claims (e.g. not consensual secured loans) against the deceased spouse are cut off. Upon death of a joint tenant, the jointly held property will then pass to surviving spouse not subject to these creditor's claims unlike title to property held in community with right of survivorship property.

Further, if you own property which you acquired prior to marriage or by gift or inheritance during marriage, that is your separate property. If you deed your separate property into community property, you will be transmuting or changing your separate property interest which you own 100% into a community interest in which you have only a one half interest with the same control problems as a joint tenancy.

A community property deed with a right of survivorship deed is available on this site for download subject to this website's general disclaimer and the other specific limitations discussed above. The deed must be completed with a legal description included on it or attached as Exhibit A, signed by each spouse on title to the property, notarized, and recorded with the County Recorder's Office for your property. A Preliminary Change of Ownership Report should be presented with the deed to the Recorder's Office and box A in Part 1 should be checked to indicate that this deed is exempt from property tax re-assessment as a exempt spousal transfer. The Preliminary Change of Ownership Report should be obtainable from your local County Recorder's or Assessor's office.

If a community property with a right of survivorship deed doesn't accomplish your objectives, put your home in a revocable trust to avoid probate.

 

WARREN NASS

WARREN NASS

P: 714.606.0329

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